Citation Nr: 0819064
Decision Date: 06/10/08 Archive Date: 06/18/08
DOCKET NO. 05-32 433 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for the residuals of cold
injury, to include frozen hands and feet.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
K.A. Kennerly, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1951 to April
1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2005 rating decision of the
St. Louis, Missouri, Regional Office (RO) of the Department
of Veterans Affairs (VA), which denied the veteran's claims
of entitlement to service connection for residuals of cold
injury, to include frozen hands and feet and entitlement to
an increased disability rating for residuals of a left ankle
sprain, with degenerative joint disease, evaluated as 20
percent disabling. The veteran submitted a notice of
disagreement later in March 2005 and indicated he only wished
to appeal the issue of service connection. Thus, the issue
of entitlement to an increased disability rating for the left
ankle is not in appellate status and will not be addressed
any further herein. See Archbold v. Brown,
9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. §
7105(a), the filing of a notice of disagreement initiates
appellate review in the VA administrative adjudication
process, and the request for appellate review is completed by
the claimant's filing of a substantive appeal after a
statement of the case is issued by VA].
Pursuant to a May 2008 motion and the Board's granting
thereof in June 2008, this case has been advanced on the
Board's docket under 38 U.S.C.A. § 7107
(West 2002 & Supp. 2007) and 38 C.F.R. § 20.900(c) (2007).
FINDINGS OF FACT
1. There is no evidence the veteran served in-country in
Korea during his time in service.
2. There is no evidence the veteran was treated for cold
injuries during his time in service.
3. There is no evidence of current disabilities of the hands
and feet due to cold injury.
CONCLUSION OF LAW
Residuals of cold injury, to include frozen hands and feet,
were not incurred in or aggravated by active duty service.
38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the
veteran's claims file. Although the Board has an obligation
to provide reasons and bases supporting this decision, there
is no need to discuss, in detail, the evidence submitted by
the veteran or on his behalf. See Gonzales v. West, 218 F.3d
1378, 1380-81 (Fed. Cir. 2000) (the Board must review the
entire record, but does not have to discuss each piece of
evidence). The analysis below focuses on the most salient
and relevant evidence and on what this evidence shows, or
fails to show, on the claim. The veteran must not assume
that the Board has overlooked pieces of evidence that are not
explicitly discussed herein. See Timberlake v. Gober, 14
Vet. App. 122 (2000) (the law requires only that the Board
address its reasons for rejecting evidence favorable to the
veteran).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence, which it finds to
be persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. The Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007).
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. See 38 U.S.C.A. § 5103(a) (West
2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi,
16 Vet. App. 183 (2002). In Pelegrini v. Principi,
18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United
States Court of Appeals for Veterans Claims (Court) held that
VA must inform the claimant of any information and evidence
not of record (1) that is necessary to substantiate the
claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) request that the
claimant provide any evidence in his possession that pertains
to the claim.
Prior to initial adjudication of the veteran's claim, a
letter dated in December 2004 fully satisfied the duty to
notify provisions for the first three elements. See
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1)
(2007); Quartuccio, at 187. The veteran was aware that it
was ultimately his responsibility to give VA any evidence
pertaining to the claim. The December 2004 letter told him
to provide any relevant evidence in his possession. See
Pelegrini II, at 120-21. Since the Board has concluded that
the preponderance of the evidence is against the claim for
service connection, any questions as to the appropriate
disability rating or effective date to be assigned are
rendered moot, and no further notice is needed. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Board also concludes VA's duty to assist has been
satisfied. The veteran's service treatment records and VA
medical records are in the file. The veteran has at no time
referenced outstanding records that he wanted VA to obtain or
that he felt were relevant to the claim.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim, as defined by law.
The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006),
held that an examination is required when (1) there is
evidence of a current disability, (2) evidence establishing
an "in-service event, injury or disease," or a disease
manifested in accordance with presumptive service connection
regulations occurred which would support incurrence or
aggravation, (3) an indication that the current disability
may be related to the in-service event, and (4) insufficient
evidence to decide the case.
The veteran's VA treatment records reflect comprehensive
treatment of the veteran's multiple medical issues. There is
no indication that the veteran has disabilities that are the
result of cold injury. The Board notes that the veteran has
complained of left foot pain; however, he is already
compensated for this pain as part of his service-connected
residuals of a left ankle sprain. As these examinations are
current, thorough and focus on the affected areas, the Board
finds that the preponderance of the medical evidence is
against current diagnoses of the claimed cold injury
residuals. An examination is not required. See McLendon,
supra.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
II. The Merits of the Claim
The veteran alleges that he currently suffers from
disabilities that are the result of cold injury during his
time in service. Specifically, the veteran has stated that
he fought in the Chosin Reservoir Campaign in Korea, after
which he was admitted for lengthy treatment of cold injuries.
He has also stated that he suffered from cold injuries during
his service in Japan. He alleges that he currently suffers
from the residuals of these injuries.
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. See 38 U.S.C.A. § 1110
(West 2002). For the showing of chronic disease in service
there is required a combination of manifestations sufficient
to identify the disease entity, and sufficient observation to
establish chronicity at the time. See 38 C.F.R. § 3.303(b)
(2007). If chronicity in service is not established, a
showing of continuity of symptoms after discharge is required
to support the claim. Id. Service connection may be granted
for any disease diagnosed after discharge, when all of the
evidence establishes that the disease was incurred in
service. See 38 C.F.R. § 3.303(d) (2007).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
Review of the veteran's service treatment and personnel
records does not reveal that the veteran served in Korea, nor
was he treated for cold injuries during service. The Board
notes that while the veteran has alleged that he served and
was injured during the Chosin Reservoir Campaign in Korea,
the veteran did not enter into active duty service until
August 1951. The Chosin Reservoir Campaign was waged from
October 1950 to December 1950. Thus, this claim is not
credible. The veteran did serve in Japan during his time in
service; however, there is no evidence that the veteran
suffered from cold injuries during the time he was stationed
there. There is evidence the veteran was hospitalized for
treatment of a left ankle injury, but this is the subject of
the veteran's award of service connection for a left ankle
disability. Thus, as there is no evidence of cold injury
during service, the veteran's claim does not meet element (2)
of Hickson.
Review of the veteran's current treatment records does not
indicate the veteran has been diagnosed with disabilities of
the hands and feet that are the result of cold injury in
service. In order to be considered for service connection, a
claimant must first have a disability. See Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155
F.3d 1353 (Fed. Cir. 1998) (service connection may not be
granted unless a current disability exists). In the absence
of diagnosed hand and foot disabilities, service connection
may not be granted. See also Degmetich v. Brown, 104 F.3d
1328 (Fed. Cir. 1997). Thus, the veteran's claim does not
meet element (1) of Hickson. The veteran's current treatment
records do not present a medical nexus for any disability and
the veteran's time in service, thus failing element (3) of
Hickson.
The only remaining evidence in support of the veteran's claim
are lay statements alleging that he currently suffers from
residuals of cold injury that are the result of service. The
Board acknowledges that the veteran is competent to give
evidence about what he experiences; for example, he is
competent to discuss his current disabilities. See, e.g.,
Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however,
competent to diagnose any medical disorder or render an
opinion as to the cause or etiology of any current disorder
because he does not have the requisite medical knowledge or
training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997)
(stating that competency must be distinguished from weight
and credibility, which are factual determinations going to
the probative value of the evidence).
Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for service connection, and
the benefit of the doubt rule enunciated in 38 U.S.C.A. §
5107(b) is not for application. In this case, the service
treatment records do not reveal any treatment for cold
injuries, the veteran has not been diagnosed with current
disabilities that are the result of cold injuries in service
and no nexus opinion has been provided. A reasonable doubt
does not exist regarding the veteran's claim that he
currently suffers from disabilities that are the result of
cold injuries in service. There is not an approximate
balance of evidence.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to service connection for the residuals of cold
injury, to include frozen hands and feet, is denied.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs